Friday, June 24, 2011

His Eyes Never Closed

Which is, as I've said several times now (here, for instance, and here), itself something of a problem. Here's Justice Stevens from his concurring opinion in Baze v. Rees.

At the same time, however, as the thoughtful opinions by THE CHIEF JUSTICE and Justice GINSBURG make pellucidly clear, our society has moved away from public and painful retribution towards ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. This trend, while appropriate and required by the Eighth Amendment's prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based. See, e.g., Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 Yale L.J. 681, 704 (2001) (explaining that there is "a tension between our desire to realize the claims of retribution by killing those who kill, and . . . a method [of execution] that, because it seems to do no harm other than killing, cannot satisfy the intuitive sense of equivalence that informs this conception of justice"); A. Sarat, When the State Kills: Capital Punishment and the American Condition 60-84 (2001).

It's that complaint we sometimes hear from those crying out for blood.

Where's the equivalence? He should suffer like she did.

But we won't do that.

Is lethal injection all that humane? Surely there are worse, more horrific ways to kill. And governments have used them over the centuries. And there's no real question that murder by needle as practiced in our prison systems is generally intended to be, in Stevens's words, "relatively painless." (By statute in Ohio it must actually be painless.)

Yet we know the problems.

When they do the three-drug mixture (anesthetic, paralytic, heart-stopper), if the anesthetic does not actually induce and maintain a sufficient coma (and there's significant evidence that sometimes it doesn't), then the rest of the killing will be agonizingly, horrifically torturous. That, of course, assumes they can get the needles in at all (see Broom, Rommell).

So states, some of them, are switching to a single drug. And there are, of course, the constant problems getting the drug, problems I've talked about before what with the DEA's seizures of smuggled thiopental and with Lundebeck's newfound willingness to try to halt use of pentobarbital. And who really knows how pentobarbital works, anyway? And of course, there's still the problem of getting the needle in the arm.

But try they will. Because it's so damn important to kill.

For over 30 years Georgia's been trying to murder Roy Blankenship. (That's him on the left.)

They screwed up his first two trials badly enough that he got a third. That was death three times. He maintained, always maintained, that he did not rape Sarah Bowen and that her death was not his fault.

This year he got stays for DNA testing. Which was inconclusive.

Interesting word that. It means we can't tell. Was it him or not? We don't know. And since we can't be sure, better to kill him.

Which they did. I mean, why take the chance we'd let a guilty man live when we can instead be sure that if he happens to be guilty he'll be dead.

Last night, they killed him. The AP report in the Atlanta Journal Constitution describes it.

Blankenship's execution was under close scrutiny by state attorneys, death penalty defense lawyers and other observers. He was laughing and chatting with a prison chaplain in the moments before his execution, at one point trying to converse with the observers sitting behind a glass window.
As the injection began, he jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.
Within three minutes, his movements slowed. About six minutes after the injection began, a nurse checked his vital signs to ensure he was unconscious before the execution could continue. He was pronounced dead nine minutes later. His eyes never closed.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
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